Argument recap: To narrow Ex parte Young, or not

Posted Mon, October 3rd, 2011 4:45 pm by Lyle Denniston

Analysis

When the Supreme Court has been doing something under the Constitution since 1824, as one Justice pointed out Monday, that perhaps should not need to be explained and maybe ought even to be free from reconsideration. But some members of the Court seemed to be suggesting, in an important public benefits case from California, that it might be time to take a new look at how open the courts should be to claims that states are getting in the way of enforcing federal law. At stake, it appears, is the fate of Ex parte Young (which dates to 1908, but embodies an older constitutional principle — the right to sue state officials directly for violating a federal law’s guarantees).

The Young precedent, of course, had its defenders on the bench during the oral argument in Douglas v. Independent Living Center (09-983), and two related cases, but they sometimes seemed on the defensive. The Court’s principal defender of the idea that federal government agencies usually do a better job than courts, Justice Stephen G. Breyer, was mainly responsible for setting the tone of argument as he imagined hundreds and hundreds of lawsuits complaining that states are not carrying out their duties under scores of federal laws, with the result that “it just stops” the federal agencies tasked with enforcing those laws from “doing their business.” Breyer summed up: “It’s a mess, in other words.”

Carter G. Phillips, the lawyer for California Medicaid patients and their care providers who have sued to stop state Medicaid reimbursement cuts, was Breyer’s target. Relying on Ex Parte Young and a very lengthy string of other Supreme Court precedents, Phillips sought to fend off Breyer’s thrusts by saying he was not arguing for such a sweeping expansion of litigation, but only for a right for persons whom Congress intended to benefit to be able to sue to see that federal supremacy is maintained and their “life or death” benefits secured. Unyielding, Phillips even drew a mild rebuke from Justice Sonia Sotomayor, who wondered why Phillips was “fighting Justice Breyer so much.”

Although Phillips insisted that he was not doing that, it was obvious that Breyer was not only speaking for himself, but was actively reinforcing the skepticism that emerged, from time to time, in milder form from other Justices, and Phillips had to try to head that off. For example, Justice Anthony M. Kennedy, whose vote may be crucial to Phillips’ clients, was led to wonder whether the lawyer had any authority other than Ex parte Young that would justify letting the beneficiaries of a federal program go into court to get an injunction under the Constitution’s Supremacy Clause against a state to ensure that federal law prevails. Earlier in the argument, by contrast, Kennedy had seemed unimpressed with the complaint, by California’s lawyer, that “the sky is falling” (as Kennedy put her argument) if courts were free to police states’ compliance with Medicaid’s federal mandates.

On Phillips’ side, going into the oral argument, was, of course, the fact that federal courts for generations have been hearing and deciding cases in which individuals sued under a variety of laws to compel states to conform, and that was just accepted practice. Justice Sonia Sotomayor noted that that had been going on since 1824. The federal government, in the Douglas cases, though, is making the argument that the practice went on without the Court really paying attention, in the sense that it was not examining what it was doing as the process went on.

The government’s lawyer at the podium, Deputy Solicitor General Edwin S. Kneedler, made an effort not to be disrespectful toward all of those precedents, and so tried to make the point that Medicaid was really different because it was a joint, cooperative enterprise, fit for management by administrative agencies, not by courts. Kneedler also argued that he was simply trying to carve out an exception to litigation, when what was at stake was a program adopted by Congress under its Spending Clause power. California’s Supervising Deputy Attorney General, Karin S. Schwartz, also sought to make that point, stressing that Congress did not explicitly create a right to sue under Medicaid, but opted instead for administrative management.

Several members of the Court seemed to find the Kneedler argument to have merit, which is not a good sign for the Medicaid patients and their care-givers in this case. If they don’t get a right to sue, they must depend entirely upon federal officials whose only power is to shut off federal funds entirely to a state that does not follow the federal law or regulations on Medicaid payment schedules.

However many precedents there are to buttress the kind of right to sue that Phillips was arguing (as Justice Sotomayor put it, the Court has had “many others that are not dissimilar to this case”), there is a strong strain of doubt within the Court under Chief Justice John G. Roberts, Jr., about courts that are perceived to have taken on too much of the task of managing society’s problems. As Roberts remarked to Phillips at one point: “Why doesn’t your position constitute a complete end-run around all of our implied right-of-action jurisprudence? We have wasted a lot of time trying to figure out whether there’s an implied right of action under a particular statute if there has always been one under the Supremacy Clause.”

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.